Amendment to CPLR 3216 restricts court-issued 90-day notices

The Legislature has acted to amend CPLR 3216 so as to eliminate the indiscriminate and arbitrary imposition of CPLR 3216 90-day notices by the courts, and the administrative dismissals which frequently followed. CPLR 3216 (a) is amended to provide that any court initiative or motion must be upon notice to the parties. CPLR 3216 (b), which lists the preconditions to dismissal, is amended in two respects. As to time, paragraph (b) (2) now provides that at least one year since the joinder of issue or six months since the preliminary conference order must have elapsed, whichever is later. Most importantly, paragraph (b)(3) now provides that where it is the court that serves a 90-day notice, the notice must
“set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation.”

Background
The amendment follows in the wake of the Court of Appeals’ decision in Cadichon v Facelle, 18 N.Y.3d 230, 938 N.Y.S.2d 232 [2011], and some background is in order. The program known as Differentiated Case Management has presented significant procedural issues since its adoption by the courts in 1999. The implementing rule is § 202.19. Cases before the court are assigned to tracks according to their complexity, with pre-determined deadlines for the completion of disclosure.
The Rule includes provisions for at least two conferences prior to the note of issue. At the second, known as the compliance conference, the court is to set a deadline for the note of issue. The practice has grown and become widespread if not universal, for the court to set that deadline at least 90 days from the date of the compliance conference, and then to include in the compliance conference order a 90-day notice pursuant to CPLR 3216. That notice specifies that if the note of issue is not filed by the deadline specified, the action will be subject to dismissal. The language used by the court may or may not include a warning that the dismissal will be without further notice. The obvious purpose of this notice is to put real teeth in the note of issue deadline.
The practice has also become widespread for the court to note an administrative dismissal on its records if the note of issue is not filed by the deadline. No further notice is given before this dismissal, and the parties are given no opportunity to be heard as to why dismissal ought not to occur.
Note that the deadline, the 90-day notice, and the dismissal are all typically imposed on a blanket, one-size-fits-all basis, whether or not they are justified by the parties’ conduct in a particular case. Note also that the burden of dismissal falls on the plaintiff, whether or not the it is the plaintiff who has caused any delay.
Cadichon v Facelle
These practices had been tacitly approved by appellate courts, until the decision in Cadichon. That case involved just such an administrative dismissal. The Court of Appeals noted that “a ministerial dismissal of the action without benefit of further judicial review” would be at variance with the language of CPLR 3216. The statute allows the trial court, on its own motion, to dismiss the action. Where there is only a ministerial entry of a dismissal, however, there has been no motion. Likewise, the existing CPLR 3216 (b)(3), in setting forth the content of the 90-day notice, requires a warning that the failure to file the note of issue will be the “basis for a motion. . .for dismissal”. A ministerial dismissal is not the same thing as a motion, or a dismissal by order.
Moreover, the 2008 amendment to CPLR 205(a) requires that a dismissal for neglect to prosecute must be accompanied by a statement by the judge, on the record, setting forth the specific conduct resulting in the dismissal, which must demonstrate a general pattern of delay. This emphasizes the necessity of “judicial involvement” in the dismissal. The Court once again stated its insistence on adherence to judicial deadlines.

“But where, as here, the case proceeds to the point where it is subject to dismissal, it should be the trial court, with notice to the parties, that should make the decision concerning the fate of the case, not the clerk’s office.”

That last point should not be overlooked. The Court in Cadichon went beyond merely holding that an order is required for a 3216 dismissal. It held that the order can only be entered after “notice to the parties.” This implies that the parties will have an opportunity to be heard and, presumably, the opportunity to develop a record prior to dismissal.
The Amendment
The amendment embodies the concerns expressed in Cadichon. CPLR 3216 (a) is amended to provide that any court initiative or motion must be upon notice to the parties. Note that the form of the notice is not specified. Is the court now required to issue some form of written notice, in the nature of a notice of motion? That seems unlikely. Will it be sufficient for the court to create a dismissal calendar, and simply hear the parties on the record? That would seem to be a possibility.
CPLR 3216 (b), which lists the preconditions to dismissal, is amended in two respects. As to time, paragraph (b) (2) now provides that at least one year since the joinder of issue or six months since the preliminary conference order must have elapsed, whichever is later. Most importantly, paragraph (b)(3) now provides that where it is the court that serves a 90-day notice, the notice must

    “set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation.”

This requirement would seem to rule out the blanket inclusion of 90-day notices in compliance conference or other orders. The notice must do two things: set forth the specific conduct justifying the notice, and state sufficient neglectful conduct to demonstrate a general pattern of delay. That is, neither specific conduct nor general delay will be sufficient in and of themselves, but both must be shown.
As to those cases where the court does consider dismissal, the Court of Appeals has held, in Baczkowski v D. A. Collins Const. Co., 89 NY2d 499, 655 NYS2d 848 [1997], and Di Simone v Good Samaritan Hosp., 100 NY2d 632, 768 NYS2d 735 [2003], that CPLR 3216 is “extremely forgiving” of litigation delay.  The courts are authorized to dismiss under that provision, but are never required to do so.  It is to be hoped that under the requirements of the amended CPLR 3216 the courts will refrain from dismissing actions merely on the basis of a failure to comply with an artificial deadline, and will evaluate the circumstances of each individual case.
Note, finally, that the amendment does not specifically address the necessity of the issuance of a formal order of dismissal. That point, however, has been settled by Cadichon, which requires actual judicial review before any form of dismissal.

The amendment became effective January 1, 2015